Dairy effluent breaches vary from farm to farm

FINED: The Waikato Regional Council has prosecuted 59 dairy farms since 2005 for effluent breaches under the Resource Management Act.

No two dairy effluent cases are the same.

However, those that end in front of a judge all ran along typical lines, Waikato Regional Council investigations manager Patrick Lynch told farmers at a Waikato Federated Farmers dairy industry group meeting.

"They all fall down in slightly different areas," Lynch said.

His team of investigators received 1200-1400 complaints every year. They investigated breaches of the Resource Management Act and organises prosecutions under the RMA for the council.

Since 2005, the WRC has undertaken 110 RMA prosecutions. They included 59 for dairy effluent breaches, 12 for earthworking, 8 for objectionable odour and seven each for intensive farming and industrial discharge.

That meant about 0.8 per cent of the region's 4500 dairy farms had been prosecuted for effluent breaches.

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In addition, they had formally investigated 137 incidents that did not result in a prosecution, he said.

They average 13 prosecutions a year and have a 98 per cent success rate when a case went before the courts.

It was a tight process because if the council got it wrong, it would be liable for costs and they wanted to avoid putting a farmer through the court system unnecessarily, he said.

The average court case duration was 10 months and the average penalty per case was $25,000.

Prosecutions were just the tip of the iceberg for what the regulatory group carried out. For every prosecution, there were farms that were given infringement notices and formal warnings.

Some problems were infrastructure- based while others had good infrastructure, but were poorly managed.

"Or there's a combination of both," Lynch said.

When that happened, the investigation turned complex.

While it was relatively simple to prove an effluent discharge into the environment, proving who was responsible can be difficult.

Those who were proven to be responsible ranged across the board, including farm owners, sharemilkers and farm workers.

In one example, he described a farm that was excessively over-stocked at 760 cows on 130ha. It had resulted in effluent spilling off the feedpad, causing large- scale ponding.

"There was **** everywhere," he said.

The farmer was convicted and fined $33,000.

In another example, a farmer was pumping effluent using lay-flat hoses directly into a nearby tributary where it then went into the river. The council was alerted after a staff member reported it confidentially to the council.

The farmer was fined a record $114,000, which the farm owner has since appealed to the high court.

It was without doubt that those examples and others did the dairy industry a disproportional amount of damage, he said.

"It is those people that operate at that level, from which the 'dirty dairying' tag - that's where that has come from."

The RMA was not just structured for punishment.

It also had tools including abatement notices and enforcement orders. That allowed the council to offer direction to fix any problem.

"How they respond to those direction can have a really big impact on how the courts look at it punishment-wise."

The council took those into consideration before it decided what action to take.

Investigations were a lengthy process for the council. When they become aware of an incident, they initiate a file, information on the incident was gathered and put in front of a panel who determined whether they should prosecute.

Other factors were also considered, including if it was deliberate or an accidental action, if there were factors beyond the farmers control such as a weather event, was any profit gained and is it a repeat non-compliance or a first- time offence.

The file was then assessed by an independent law firm who checked there was sufficient evidence and if a prosecution was in the public interest.

It was then returned to the council. If the law firm backed the council's decision to prosecute, it then went before a district court judge.

The council investigated more files than it prosecuted and just because an incident was being investigated, it did not mean it would end up in a prosecution.

There was not enough reliable information to determine whether compliance levels were trending up or down, he added.

At the bad end of the spectrum where prosecutions were carried out, it was only when offenders were caught that their behaviour changed, he said.

He favoured a broad spectrum approach to monitoring compliance.

Education and enforcement on their own would only work with certain people, he said.

Educating farmers also had a role. Lynch said one of his staff told him they got more progress from educating farmers in the last five years than the previous 20.

"People know there is a consequence and they're far more likely to engage in education." Fairfax NZ